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Technologies Better Left Unused

Ps3_1The “first sale” doctrine hasn’t been kind to the entertainment industry. Written into federal copyright law in 1976, the longstanding principle holds that a copyright holder’s exclusive right to distribute a work ends as soon as someone buys it. That means consumers are free to redistribute that work – selling, donating or renting it – without compensating the copyright holder, provided they’re not making new copies. Without the first-sale doctrine, there wouldn’t be vibrant, legal markets for used albums, movies and video games.

Now, some video-game industry analysts are wondering if Sony will try to defeat the first-sale doctrine technologically. Several years ago, Sony Corp. patented a technique for designing consoles and video game discs that would effectively eliminate gamers’ ability to rent, sell or share the titles they buy. My colleague Dawn Chmielewski provides an outline of the technology here. The company hasn’t implemented the technique yet, and there’s no indication whether it would do so in the forthcoming PlayStation 3. Still, it’s a logical extension of the strategy that the entertainment industry has been following for a decade: using encryption and other digital-rights-management techniques mainly to stop people from using products in ways the industry doesn’t like, rather than employing those tools to enable compelling new uses.

That strategy has produced such bizarre and counterproductive results as the Sony BMG rootkit fiasco, which led the company to recall millions of dollars worth of copy-protected CDs, and the DRM format war that’s curbing the growth of online music subscription services. If the video game industry were like the cellphone business, with free consoles and cheap games, a move to cut off used or rented games might be tolerable. Against a backdrop of $400 consoles and games that sell for $50 to $60, however, such a change would simply push more fans away from the PlayStation 3 and onto Microsoft’s Xbox 360 or Nintendo’s Wii. Good thing they have a choice….

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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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